State v. Crumm

• Decision Date: 03 December 1982
• Docket Number: No. 53737,53737
• Citation: State v. Crumm, 232 Kan. 254, 654 P.2d 417 (Kan. 1982)
• Parties: STATE of Kansas, Appellee, v. James K. CRUMM, Jr., a/k/a James M. Hobson, Appellant.
• Court: Kansas Supreme Court

Page 417

654 P.2d 417

232 Kan. 254

STATE of Kansas, Appellee, v.James K. CRUMM, Jr., a/k/a James M. Hobson, Appellant.

No. 53737.

Supreme Court of Kansas.

Dec. 3, 1982.

Syllabus by the Court

1.It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.

2.Claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to a claim of privilege and due to the impossibility of cross-examination as to its assertion.

3.The right to confront and to cross-examine witnesses is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.The Fifth Amendment privilege against self-incrimination, when properly invoked, is clearly one of those interests.

4. K.S.A. 60-456(a ) vests a wide discretion in the trial court over the admission of lay opinion testimony.

5.The refusal by the trial court to give a requested instruction does not result in reversible error when the substance of the instruction is contained in other instructions.

6.The fact that a requested instruction is technically a correct statement of the law does not make the trial court's refusal to give the instruction reversible error.

Edward V. Byrne, Olathe, argued the cause and was on the briefs for appellant.

David D. Belling, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

MILLER, Justice:

This is an appeal by James K. Crumm, Jr., from his conviction of first degree murder, K.S.A. 21-3401.He was convicted by a jury in Miami District Court of the shotgun slaying of his stepbrother, Christen A. Hobson.The only defense asserted was that of insanity.On appeal, defendant claims error in the exclusion of evidence, error in the cross-examination of one of the defense medical witnesses, and error in refusing a requested instruction.

Since the defendant does not challenge the sufficiency of the evidence to support the verdict, a brief statement of the facts will be sufficient.On April 17, 1980, Ed Hobson reported to the Overland Park police department that his 13-year-old son, Christen, was missing.A few days later, Christen's wallet was found in the Metcalf South shopping center.No further clues were found as to Christen's whereabouts until May 3, 1980, when two young fishermen found a body in a shallow grave near Bull Creek in rural Miami County.Within hours the body had been identified as that of Christen Hobson.Three people were taken into custody and charged with the homicide: the defendant, James Crumm, his mother, Sueanne Hobson, and his friend, Paul Sorrentino.Defendant gave a detailed statement to the officers, admitting that he and Sorrentino, at the urging of Sueanne Hobson, took Christen from his Overland Park home, drove him to Miami County, caused him to dig his own grave, shotgunned him down at close range, and covered the body with earth.Defendant and Sorrentino then returned to Johnson County.Defendant disposed of the shovel used to dig and cover the grave, and he disposed of his stepfather's shotgun which he had taken earlier that day.Defendant also stated that his mother promised to buy him a car and to pay for repairs for Sorrentino's motorcycle as their payment for killing Christen.The extensive psychiatric testimony presented at trial dealt with defendant's history, his suggestibility, his severe alcoholism, his perplexing relationship with his mother, and practically every other aspect of his personality.Three psychiatrists testified for the defense and expressed opinions that the defendant did not know the difference between right and wrong at the time of the homicide.Two psychiatrists testified for the State, and each expressed the opposite opinion: that the defendant was sane at the time of the homicide, knew the difference between right and wrong, understood the nature and quality of his acts, and knew that the killing was wrong.The jury brought in a verdict of guilty as charged.

Defendant's first claim of error is that the trial court erred in excluding certain testimony of witnesses Sueanne Hobson, Gerald A. Colwell, and Jane Young.We will consider the testimony of Sueanne Hobson, defendant's mother, first.Mrs. Hobson had been arrested, questioned, and charged originally, but the charges had been dismissed and she was not charged with any offense at the time of this defendant's trial.She was, however, aware that she could still be charged with the murder of her stepson, and in fact she was later charged and convicted of that offense.When she was called by the defendant as a witness at this trial, she was accompanied by her attorney, Hugh Kreamer, of Olathe.Counsel, including Mr. Kreamer, met in chambers and took up a motion in limine filed by the State, in which the State sought to have the court instruct defense counsel not to ask Mrs. Hobson about any matters which might incriminate her and which might be within her Fifth Amendment privilege.Mr. Kreamer stated emphatically that Mrs. Hobson would not testify as to any of the events leading up to the murder and that Fifth Amendment objections would be raised to any questions along that line.The trial court sustained the State's motion and no such questions were asked.Mrs. Hobson did testify in the defendant's behalf, but her testimony concerned defendant's early life and did not touch on the events immediately prior to or connected with the homicide.

Defendant now contends that the six-hour statement which Sueanne Hobson gave to the Overland Park Police Department should have been received in evidence.Included in the record before us is what appears to be a partial transcription of that statement; it consists of about nine letter-sized pages and is obviously but a small part of her statement.Neither the complete statement nor this partial transcription were ever marked as an exhibit in this trial; neither was ever offered in evidence; neither was ever identified.Neither the officers who took the statement nor the transcriber were ever called as witnesses.Under the circumstances, the trial court did not commit error in failing to receive the statement into evidence.

Defendant also contends that his counsel should have been permitted to question Mrs. Hobson about her statement and about the facts leading up to the homicide.There are several reasons why defendant's argument in this regard is not persuasive.Mrs. Hobson was not charged with the murder of her stepson at the time of this trial, but the possibility of charges being brought against her was very real.The statement which she allegedly gave was not offered in evidence, and it was not shown to be a free and voluntary statement.No witnesses were called to testify about it.She had not been tried and convicted of homicide; she had not pleaded guilty to any charge; she had not acknowledged that her statement was voluntary; and no court had determined that it was admissible against her.The trial judge was aware of and indeed necessarily sensitive to the right of the witness to decline to answer questions which might well incriminate her.In ruling on the motion, the judge said:

"I don't think it is proper to require this witness to testify to matters which may tend to show any participation or any influence on her part in the actual commission of the crime."

The witness, through counsel, had clearly informed the judge and trial counsel that the witness would not answer any questions which might incriminate her, but would refuse to answer, based on the Fifth Amendment.The effect of questioning by counsel would have been to require the witness to invoke her privilege in open court before the jury.Clearly, this would have been improper.

In State v. Day, 400 So.2d 622(La.1981), the State sought to interrogate the defendant's wife after she had informed court and counsel that she did not want to testify against her husband.The trial court ruled that Mrs. Day had to exercise her privilege in front of the jury.Defendant, on appeal, claimed that this was error.The Louisiana Supreme Court said:

"At trial and during the State's opening remarks, the prosecutor, Ralph Roy, announced that he would subpoena Mrs. Day as a witness for the State.Subsequently, with the jury retired, Mrs. Day stated 'I don't want to testify against him.'Nevertheless, the court ruled that Mrs. Day had to exercise her privilege in front of the jury.Appellant specifies this as error.

"State v. McMullan, 223 La. 629, 66 So.2d 574(1953), held that it was not error for a trial court to require a witness claiming privilege to exercise same before the jury.

"State v. Haynes, 291 So.2d 771(La.1974), however, citing American Bar Association Standards for Criminal Justice, Prosecution Function 5.7, disapproved of the practice sanctioned by McMullan.It is noteworthy that the prosecutor in the present case, who was also the prosecutor in Haynes, intentionally chose to ignore the rule change initiated by this court in Haynes.

"In State v. Berry, 324 So.2d 822(1975), this Court stated at 830:

" 'It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.American Bar Association Standards of Criminal Justice, Relating to the Prosecution Function, Standard5.7(c), andRelating to the Defense Function, Standard7.6(c)(1971).

" 'As the commentaries to these standards indicate, claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion.(The commentaries also note the impropriety of either counsel...